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The Truth About CEQA And Infill — New OPR Study Seems to Refute Governor’s Claim that CEQA Hinders Infill

The California Environmental Quality Act (CEQA) is perhaps California’s preeminent environmental law, and has helped safeguard the state’s lands, air, waters and communities for more than four decades. The law requires state and local agencies to assess and disclose environmental impacts of proposed projects, and to minimize or mitigate those impacts to the greatest extent possible. CEQA is a good governance statute that requires that elected and agency officials have the information they need to make informed decisions. It is an environmental ‘bill of rights’ that ensures the public is engaged in the decisions that impact them most directly. And it is a law that has fostered more environmentally sound projects in virtually every community throughout California.

Yet, CEQA has been under increasing attack in recent years, particularly as California’s economic troubles have been used as a rationale to challenge environmental protections. CEQA has even been challenged by some of our long-time allies for making it difficult to pursue infill development. This is the argument made by Governor Brown – stemming from some downtown projects that stalled in Oakland while he was Mayor of that City – as he seeks to remake (and some would contend eviscerate) the law.

So, that begs the question – does CEQA hinder infill?

Before answering that question, it is important to first recognize that the relationship between infill, CEQA and the environmental community is complex. Yes, environmental advocates – including PCL – are strong proponents of infill. Investing in our urban core is absolutely essential to making California a truly sustainable state. Infill can lessen our dependence on (and costs associated with) automobiles, reduce GHG emissions and other air pollution, promote more active transportation that will improve the vitality of neighborhoods and health of residents, and offer a host of benefits that are far too numerous to address here.

But, infill has to be done well, or its negative impacts can outweigh these positives. Most commonly, infill can result in gentrification and displacement of existing – often underserved – populations, or having those populations absorb a disproportionate share of impacts without seeing the resultant benefits of infill. Similarly, historic resources are often lost in the name of ‘smart growth’. This often puts environmental groups in the middle of a heated debate – supportive of infill and its potential to better our communities, but equally concerned with ensuring local populations and even historic resources don’t bear the brunt of such infill projects.

Once we recognize these inherent complexities, we must next look at the facts to determine whether CEQA does, in fact, hurt infill. Unfortunately, there is a lack of comprehensive research about the impacts of CEQA in infill that will either make – or refute – this contention. In arguing that CEQA is (in general) unfairly scapegoated, PCL cites the April 2005 CEQA Reform: Issues and Optionsreport from the independent Public Policy Institute of California (PPIC). This report concluded that of more than 30,000 projects reviewed, 90% produced ‘negative declarations’, with only 1,600-1,800 required more costly Environmental Impact Reports (EIRS). Moreover, such EIRs were required (according to the PPIC report) for ‘projects that needed EIRs the most’, and two-thirds of projects with EIRs were ultimately approved. Countering that CEQA lawsuits have run amuck in halting projects, the report also concluded that only one of every 354 CEQA reviews (less than .3%) were ever taken to court.

While this is all important information, it is (by now) somewhat dated and not totally on point to the question of CEQA’s impact directly on infill. Which is why I was so happy to read the Governor’s Office of Planning and Research (OPR) 2012 Annual Planning Survey Results that was released on May 3. The Survey, which has been conducted for more than 20 years, is a fairly technical document that compiles survey results from municipal planning departments to assess the ‘state of planning’ at the local level. This past year, a total of 471 of 540 California cities and counties (an impressive 87%) completed the Annual Planning Survey.

What was of most interest to me is a chart found on page 24 of the report that compiles the results when cities and counties were asked to ‘explain the primary barriers your jurisdiction has experienced to implementing infill projects’. Of 238 respondents to this question, 25% of jurisdictions reported that Infrastructure Constraints were a primary barrier to implementing infill projects; just under 25% reported that they had problems with Assembling Parcels of the Right Size and Configuration for infill development. Less than 5% of respondents listed CEQA as a primary barrier to infill, which ranked it 12th of 16 possible barriers listed. The Economy, Lack of Funding, Lack of Interest and Community Opposition/Concerns all ranked far ahead of CEQA. Interestingly, even Loss of Redevelopment Agencies (with around 6% response) ranked slightly ahead of CEQA as a barrier to infill – somewhat ironic considering Governor Brown was the architect behind dismantling of redevelopment while at the same time bemoaning CEQA’s role in undermining infill.

Now, I don’t mean to suggest that CEQA operates perfectly – CEQA, like any law, is not sacrosanct and should be regularly assessed and, if needed, altered to better achieve its goals. Nor am I suggesting that CEQA has never proven to be a barrier to infill. Even without comprehensive research examining the relationship between CEQA and infill, there is at least some anecdotal evidence that suggests there may be some truth behind this claim.

What I am suggesting, however, is that infill is a complex issue, with many factors combining to limit our ability to rethink and rebuild California’s urban cores. Moreover, based on the evidence we do have, it appears that CEQA receives a disproportionate share of blame and attention when it comes to infill. Based on the responses in OPR’s Annual Planning Survey, it is doubtful to think that changes to CEQA alone will have a meaningful impact on infill development as such changes will not address the 11 barriers that all ranked higher than CEQA.

Rather than the usual ‘Ready…Fire… Aim’ mentality that has put CEQA in the cross-hairs, we must instead determine what outcomes we want to achieve (in this case, promoting appropriate infill without unduly impacting existing populations); identify the real barriers to achieving these outcomes; and address these barriers in a thoughtful, systematic and transparent fashion. Only when we understand all the root causes that limit infill will we be able to craft solutions to address this problem – whether it be enacting policies that protect existing communities, educating communities about the benefits of infill, or changing a whole array of policies (parking requirements, incentives) that will promote infill over sprawl.

Part of this assessment must necessarily include looking at CEQA – and even the staunchest proponents of this law (including PCL) must not be afraid to engage in a meaningful dialogue on this subject. But let’s make sure we base such an assessment on fact rather than conjecture and work collaboratively to identify problems and craft solutions that will promote more sustainable neighborhoods while preserving CEQA’s role in furthering informed decision-making and community empowerment in order to safeguard our environment and communities.

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The Planning and Conservation League (PCL) and PCL Foundation have had a long history with CEQA, helping to draft and pass the landmark law in 1970, and playing a key role in defending CEQA in the legislature and the courts since that time. PCL and PLC Foundation have also educated local communities about the law, including publishing The Community Guide to CEQA (which is now usedas required reading in some universities), hosting CEQA workshops throughout the state, and developing an Everyday Heroes publication and California Heroeswebsite highlighting CEQA success stories.